New York Codes, Rules and Regulations
Title 5 - DEPARTMENT OF ECONOMIC DEVELOPMENT
Chapter XVII - EMPIRE STATE FILM PRODUCTION TAX CREDIT PROGRAM
Part 170 - EMPIRE STATE FILM PRODUCTION TAX CREDIT PROGRAM
Section 170.6 - Criteria for evaluation of applications
Universal Citation: 5 NY Comp Codes Rules and Regs ยง 170.6
Current through Register Vol. 46, No. 12, March 20, 2024
(a) Initial application.
An initial application shall be reviewed by the department to determine, in its discretion, that all of the following criteria are met:
(1) the application is
complete;
(2) the application is
not premature;
(3) the authorized
applicant is a qualified film production company or a sole proprietor of a
qualified film production company;
(4) the authorized applicant intends to shoot
a portion of principal and ongoing photography on a stage at a qualified film
production facility on a set or sets;
(5) the authorized applicant is planning to
produce a qualified film;
(6) the
authorized applicant's projected qualified production costs (excluding
post-production credits) paid or incurred which are attributable to the use of
tangible property or the performance of services at a qualified film production
facility in the production of a qualified film is likely to equal or exceed 75
percent of the projected production costs (excluding post production costs)
paid or incurred which are attributable to the use of tangible property or the
performance of services at any film production facility within and without the
State in the production of the qualified film;
(7) if the qualified film being produced is a
level two qualified production (other than a pilot), then the applicant intends
to shoot at least 10 percent of its principal photography days at a qualified
film production facility;
(8) if
the qualified film being produced is a television pilot and is a level two
qualified production, the applicant intends to shoot at least one full day of
principal photography at a qualified film production facility;
(9) the authorized applicant did not
knowingly submit false or misleading information to the department;
(10) the authorized applicant certifies that
it will purchase taxable tangible property and services, defined as qualified
production costs, only from companies registered to collect and remit New York
State and local sales and use taxes;
(11) the authorized applicant intends to
comply with the end credit requirements set forth in section
170.2(i)
of this Part;
(12) if the applicant
is seeking credit on any costs incurred in New York outside a qualified film
production facility, and the projected qualified production costs (excluding
post-production costs) paid or incurred which are attributable to the use of
tangible property or the performance of services at a qualified film production
facility in the production of a qualified film are less than $3 million, then
the shooting days spent in New York outside of a film production facility in
the production of the qualified film are projected to equal or exceed 75
percent of the total shooting days spent within and without New York outside of
a film production facility in the production of such qualified film;
and
(13) the authorized applicant
has submitted a diversity plan.
(b) Final application.
A final application shall not be approved by the commissioner unless the commissioner determines, in his or her discretion, that the following criteria are met:
(1) the
application is complete;
(2) the
applicant shot a portion of principal and ongoing photography on a stage at a
qualified film production facility on a set or sets;
(3) if the qualified film produced was a
level two qualified production (other than a pilot), then the applicant shot at
least 10 percent of its principal photography days at a qualified film
production facility;
(4) if the
qualified film that was produced was a television pilot and was a level two
production, then the applicant shot at least one full day of principal
photography at a qualified film production facility;
(5) a qualified film was produced and
completed;
(6) the applicant's
actual qualified production costs paid or incurred (excluding post-production
costs) which are attributable to the use of tangible property or the
performance of services at a qualified film production facility in the
production of the qualified film equaled or exceeded 75 percent of the
production costs (excluding post production costs) paid or incurred which are
attributable to the use of tangible property or the performance of services at
any film production facility within and without the State in the production of
the qualified film;
(7) the
authorized applicant did not knowingly submit false or misleading information
to the department;
(8) in the event
that the actual qualified production costs (excluding post-production costs)
paid or incurred which are attributable to the use of tangible property or the
performance of services at a qualified film production facility in the
production of a qualified film are less than $3 million, then the shooting days
spent in New York outside of a film production facility in the production of a
qualified film equaled or exceeded 75 percent of the total shooting days spent
within and without New York outside of a film production facility in the
production of such qualified film. If the shooting days spent in New York
equaled or exceeded the 75 percent threshold, the department shall include in
its calculation of the Empire State film production tax credit the portion of
qualified production costs attributable to the use of tangible property or the
performance of services in the production of a qualified film outside of a
qualified film production facility; and
(9) the applicant has supplied documentation
(e.g. still shot, frame grab, finished DVD or other documentation such as the
Department may require) that the end credit requirements set forth in section
170.2(i) of this
Part have been met;
(10) the
applicant has completed a diversity report and the extent to which the
applicant has met or made good faith efforts to meet the specific goals
outlined in their diversity plan; including how the applicant has participated
in training, education and recruitment programs that are designed to promote
and encourage the training and hiring of New York State residents who represent
the diversity of the State's population. With respect to subdivision 10 above,
the Department may issue guidelines to delineate its process for analyzing good
faith efforts to meet goals on a diversity plan.
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